The title of this post is the title of this new paper authored by Shima Baradaran Baughman now available via SSRN. Here is its abstract:
The American criminal justice system is known to dole out the harshest punishments in the world. It is infamous for putting people in prison for longer and for a wider variety of crimes. But what is lost on most scholars and policy makers is that the United States punishes only a small amount of the total serious crime that occurs in the country — including violent crime. Approximately 20 million serious crimes occur in America each year, but only about half of these are reported to police. And of the fraction reported, the police make arrests for only an average of 20% of all serious crimes, and only 10% result in a conviction.
The problem is not only that those who are arrested are punished severely, but also that there is a selection error in who and what crimes we select to punish. First, the justice system increasingly focuses on incarcerating those who commit minor nonviolent crimes, rather than pursuing difficult-to-solve violent crimes. This creates a serious gap of accountability for the most violent criminals. Second, American incarceration suffers from a selection error in that it overwhelmingly selects for punishment individuals from low-income backgrounds and people of color. Not only is this problematic through a disparity lens but also with crime control and recidivism, as studies show that low certainty of punishment leads to higher rates of crime.
There are two approaches to rectify this largely unrecognized dilemma. One option is to increase incarceration rates, focusing on the populations who are currently not being targeted and are getting away with crime. Higher accountability for crime will lead to increased certainty of punishment and less crime and incongruity as a more representative sample is incarcerated. A second possibility, considered more closely by this Article, is relying on alternative accountability models that could improve certainty of punishment without relying exclusively on incarceration, thereby avoiding the societal harms that accompany incarceration. This approach could address the dangerous selection error that tends to neglect violent crime by creating accountability outside the carceral system and strengthening police-community relationships.